Academic journal article Southern Law Journal

Burwell V. Hobby Lobby Stores, Inc.: Lots of Smoke, but No Fire

Academic journal article Southern Law Journal

Burwell V. Hobby Lobby Stores, Inc.: Lots of Smoke, but No Fire

Article excerpt

I. Introduction

In Burwell v. Hobby Lobby Stores, Inc.,1 the U.S. Supreme Court decided that the United States Department of Health and Human Services' (HHS) requirement that closely held corporations provide health-insurance coverage for methods of contraception, which were contrary to the genuine religious beliefs of the companies' owners, violated the Religious Freedom Restoration Act of 1993 (RFRA).2 RFRA requires that strict scrutiny applies to any federal government action which substantially burdens the exercise of religion, i.e., the government action is illegal unless it is the least restrictive means of advancing a compelling government interest.3

Hobby Lobby is the second case to come before the U.S. Supreme Court challenging all or part of the Patient Protection and Affordable Care Act of 2010 (ACA)4. The first case, National Federation of Independent Businesses v. Sebelius (NFIB),5 upheld ACA's requirement that all individuals obtain health insurance, turning back a direct and audacious challenge to ACA that, if it were successful, would have dismantled it. Hobby Lobby was a more modest approach which tackled only a portion of the contraceptive requirement, but it may encourage additional challenges to other parts of ACA, which if successful may bring down ACA one piece at a time.6

The owners of Hobby Lobby and many of their employees share a common religious belief - that certain forms of birth control cause abortion. In 1978, the U.S. Congress unequivocally declared that discrimination based on pregnancy was sex discrimination.7 In 2000, the Equal Employment Opportunity Commission dictated that any insurance that has a prescription drug component cannot exclude birth control. If a plan excluded birth control, it was in violation of the 1964 Civil Rights Act.8 On the March, 23, 2010, President Obama signed ACA into law. Following previous legislation and court directives, the plan included the proviso that contraceptive birth control must be provided. Additionally, the ACA indicated that the contraceptive must be available without co-pay and provided a list of the contraceptives that the plans are required to offer. When the government imposed this contraceptive mandate, the religious beliefs of many seemed to be at risk. Fueled by this impression, many employees and some employers loudly expressed their concerns. The fire was lit.

II. The "War on Women" versus an "Attack on Religious Liberty"

To understand the fervor associated with this case, it is important to frame the issue as perceived by the public. In May of 2015, the President Obama confirmed that all covered organizations must provide at least one form of all 18 FDA-approved methods (each method may have multiple options) for female birth control. They include: sterilization surgery, surgical sterilization implant, implantable rod, copper intrauterine device, IUDs with progestin (a hormone), shot/injection, oral contraceptives (the pill), with estrogen and progestin, oral contraceptives with progestin only, oral contraceptives, known as extended or continuous use that delay menstruation, the patch, vaginal contraceptive ring, diaphragm, sponge, cervical cap, female condom, spermicide, emergency contraception (Plan B/morning-after pill), and emergency contraception (a different pill called Ella)9

Originally, ACA did not actually mandate coverage of the controversial birth control items.10 The U.S. Department of Health and Human Services (HSS) announced the final rules on January 20, 2012.11 HHS secretary Kathleen Sebelius stated that health insurance coverage with no-cost sharing must cover the FDA-list of approved contraceptives and services for women in their reproductive age. Male contraception was not eligible. In a limited consideration of religious beliefs, ACA did not apply to churches; however, the mandate applied to all other employers (including closely-held for profit companies that had a religious ownership) and educational institutions. …

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